System failure

Información, 24/06/05 (translation)

By Charles Svoboda

The European Parliament Petitions Committee mission to the Valencian Community has created controversy between two Valencian Euro MPs, Mr J.M. García-Margallo (PP) and Mr J. Calabuig (PSOE), with a recent cross-fire of declarations and open letters. Abusos Urbanísticos No (AUN) is not engaged in a partisan struggle; we therefore have no intention of siding with either of the parties represented by the respective Euro MPs. We are however very pleased that the veil of silence which for so many years has hidden urbanistic abuse has finally fallen away and the parties are starting to discuss these matters openly. After all, that is what they are there for: to address the problems which really affect people.

We cannot however allow one of Mr García-Margallo's declarations to go unanswered. According to this PP Euro MP, "the LRAU was passed by you, the Socialists, and then applied later by the PP government. The law was accepted by everyone at the time, and more importantly was accepted by the Constitutional Court which has responsibility for ensuring the probity of legislation." However, citizens should be aware that not everyone thought the LRAU was fine at that moment and the Constitutional Court certainly did not do so.

The declarations made by Mr José Joaquín Ripoll, PP Spokesman on the Public Works Committee in the Valencian Cortes, during the parliamentary debate on the LRAU Bill on 3 April 1994, are worthy of note. He considered that the LRAU "was extremely arbitrary" and that property owners "were less protected, were accused of speculation and consequently swept out of the way". We would be the last to contradict the present Chairman of the Alicante Diputación.

The LRAU was passed on 11 November 1994, with the PP and Unión Valenciana voting against. Furthermore, the PP announced at that time it would possibly derogate the law when the party came to power. On 15 November 1994, the press published declarations made by the President of the Valencian Builders' Federation, Mr Alfredo Corral Cervera, who considered that the new law "undermined property rights" as "the owner is left defenceless when it comes to defending his property". According to Mr Corral the LRAU "would be very negative, would create many problems for small and medium-sized companies, would facilitate the activities of pressure groups and would give big financiers monopoly control of the supply of building land."

In other words, the LRAU did not please all of the people at that time. And, what is more important, nor was it fine by the Constitutional Court since it had never examined the constitutionality of the LRAU.

On 15 October 2001, the High Court of Justice of the Valencian Community questioned the constitutionality of certain precepts of the LRAU, in particular that it infringed national legislation on public works contracting.

On 16 July 2002, the Constitutional Court found this case inadmissible strictly for technical reasons and did not examine the question in depth. In other words, the Constitutional Court did not have either a good or a bad opinion of the LRAU, for the simple reason that it had never examined its compatibility with the Spanish Constitution.

This came about because the question of unconstitutionality should have been raised in the first three months after the law came into force, at the beginning of 1995, before the law got into its stride. As property rights are not covered by "recurso de amparo" (highest constitutional protection), the only way that the Constitutional Court would examine the constitutionality of the LRAU would be for a Valencian Court to raise the question again. For whatever reason, no further case has ever been brought to the Constitutional Court, although numerous petitioners have wished to do so. The result: a law which "can be rationally described as unconstitutional" has been in force for more than ten years without having been examined by the highest tribunal in the land.

Faced with this desolate panorama, we can only say "thank goodness that we are in Europe". The European Commission does take its mission as guardian of the Community Treaties seriously and makes sure that Member States fulfil their obligations. In July 2004, Abusos Urbanísticos No (AUN) presented a formal complaint against the LRAU on exactly the same grounds as those indicated at the time by the Valencian High Court: infringement of European norms on public works contracting. Nine months later, the Commission started an infringement procedure against Spain, considering that the LRAU infringes European Directives on public procurement, and does not respect Articles 43 to 55 of the European Union Treaty or the general principles laid down by the European Court of Justice. In other words, the European Commission has come to the same conclusion in 2005 as the Valencian High Court in 2001 and on the same question the Spanish Constitutional Court did not wish to examine at the time for technical reasons.

Can we not argue that this is "system failure" given that we have to seek redress in Brussels because the Spanish justice machine has failed to address the problem?